San Jose Peace officer's Assn. v. City of San Jose

• Decision Date: 21 March 1978
• Citation: 78 Cal.App.3d 935,144 Cal.Rptr. 638
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 L.R.R.M. (BNA) 2171 SAN JOSE PEACE OFFICER'S ASSOCIATION, Plaintiff, Respondent and Appellant, v. CITY OF SAN JOSE, etc., et al., Defendants, Appellants and Respondents. Civ. 40643.

Page 638

144 Cal.Rptr. 638

78 Cal.App.3d 935, 98 L.R.R.M. (BNA) 2171

SAN JOSE PEACE OFFICER'S ASSOCIATION, Plaintiff, Respondent and Appellant, v. CITY OF SAN JOSE, etc., et al., Defendants, Appellants and Respondents.

Civ. 40643.

Court of Appeal, First District, Division 3, California.

March 21, 1978.

Rehearing Denied April 20, 1978.

Hearing Denied June 1, 1978.

Ronald W. Yank, Carroll, Burdick & McDonough, San Francisco, for plaintiff, respondent and appellant

Richard K. Karren, Acting City Atty., City of San Jose, San Jose, for defendants, appellants and respondents.

BROWN, ^* Associate Justice

Defendants City of San Jose, a chartered city, its city manager and its chief of police (hereinafter appellants) appeal from a judgment declaring that they must meet and confer with the San Jose Police Officer's Association (hereinafter respondent) before changing the portion of their use of force policy governing when a peace officer may discharge his firearm. Respondent has cross-appealed from the portion of the judgment refusing to award it attorney's fees. For the reasons hereinafter stated, we reverse the judgment of the trial court, except for the portion refusing to award respondent attorney's fees, as to which we affirm.

Respondent is a recognized employee organization within the meaning of the Meyers-Milias-Brown Act (hereinafter the MMBA), Government Code sections 3500-3510, ¹ representing peace officers of the San Jose Police Department below the level of assistant chief.

Prior to the incidents involved herein, San Jose's police department adopted a regulation effective May 1, 1972, governing the circumstances under which a policeman would be permitted to discharge a firearm. As conceded by counsel for respondent during argument, this regulation was adopted unilaterally by the police department, and no request was made that the police department meet and confer with respondent with respect to its adoption. Said regulation provided as follows:

PART XI USE OF FIREARMS

3111.1. Firearm Regulations.

a. When Firearms May be Discharged. Firearms may be discharged in the performance of a police duty only under the circumstances listed below.

If, in the opinion of the officer involved, he can safely accomplish the ends described in (3), (4) and (5) by firing a warning shot or shots, he may do so.

(1) At an approved range.

(2) When killing seriously wounded or dangerous animals when other disposition is impractical.

(3) When necessary in the defense of his own life when all other reasonable means have failed.

(4) When necessary in the defense of another person's life when all other reasonable means have failed.

(5) When necessary to effect the capture of, or prevent the escape or rescue of a person whom the member has reasonable cause to believe has committed a felony involving the use or a threat to use deadly force, when all other reasonable means have failed.

b. When Firearms Will Not be Discharged. Firearms will not be discharged under the following circumstances;

(1) At misdemeanants.

(2) To effect the capture or prevent the escape or rescue of a person whom the member has reasonable cause to believe has committed a felony which did not involve the use or a threat to use deadly force.

(3) At moving or fleeing vehicles involved in violations of the Vehicle Code (including felony violations such as 20001, 10851, 23105) unless necessary to defend the life of the officer or another person.

5/1/72

Representatives of San Jose and respondent entered into a memorandum of understanding pursuant to the MMBA, covering the period July 1, 1972 through June 30, 1975. This memorandum of understanding was later adopted by San Jose's city council. On January 23, 1975, the chief of police issued a new policy governing the use of firearms. Appellants did not meet and confer with respondent before doing so. The policy of January 23, 1975 provided in part as follows:

"BACKGROUND AND PURPOSE"

" * * * " AND

" * * * Thus, it is seen that our new policy is not a radical departure from the evolving standards, but rather it reflects some generally accepted values of our modern society and the criminal justice system; to wit, the use of deadly force is justifiable only as a means of preserving life. The discharge of firearms is never justifiable solely for the purpose of apprehension. It should be emphasized that there is nothing in this policy that prohibits police officers from protecting themselves or another person from a danger of death or of great bodily injury."

"3111.1. Definition of Deadly Force.

" * * * " fin

"e. An honest and reasonable belief is a judgment based on a set of circumstances that would cause a person of ordinary caution and prudence to reasonably entertain (have in mind) a strong suspicion amounting to a belief that a certain condition exists that requires the use of deadly force. In determining reasonableness, the officer should honestly believe (in fact entertain) certain conditions exist that require the use of deadly force. The judgment is not reasonable if the officer is negligent in surveying the facts or is negligent in acquiring any knowledge needed to understand the set of circumstances, the applicable laws, or the policies of his Department.

"The San Jose Police Department qualifies its members by periodic training as stated elsewhere in this policy and each officer must demonstrate the ability to understand laws and policies, analyze combat situations, and defend himself and others."

"f. Force necessary to protect is that force required to protect against a manifest peril to life or great bodily injury. Manifest peril occurs when there is a combination of time, space and reason to believe a perilous action will occur. There are three general situations of manifest peril involving these combinations which justify the use of deadly force:

"(1) Instant Peril At this moment and this place, the officer has reason to believe that this person has the ability to kill or do great bodily injury and will do so.

"(2) Near Peril At the next moment and in this place, the officer has reason to believe that this person will have the ability to kill or do great bodily injury and will do so.

"This place, as used in (1) and (2), is defined as that area in proximity to the officer in which he can, at this time, personally observe the activity of the person.

"(3) Foreboding Peril At another time and in an unknown place, the officer has reason to believe that this person will have the capacity to kill or do great bodily harm and will do so because he has demonstrated a wanton disregard for human life."

"3111.2. When deadly force may be used. A police officer may use deadly force when all other reasonable means have failed and the officer honestly and reasonably believes that such force is necessary to protect himself or another person from death or great bodily injury."

"3111.3. When firearms may be discharged. A police officer may discharge a firearm:

"a. As provided in Section 3111.2.

"b. At a firing range pursuant to all safety rules and instructions.

"c. To kill seriously injured or dangerous animals when no other disposition is practical and the public safety is not jeopardized by the discharge."

On February 25, 1975, respondent's counsel sent a letter to the city manager alleging that respondent had not received a copy of the new policy until February 10, 1975, and requesting that San Jose meet and confer concerning the policy. On February 26, 1975, counsel wrote another letter stating that, having read the memorandum of understanding between San Jose and respondent, he was of the opinion that San Jose could only change the use of force policy if respondent was willing to meet and confer on the issue.

Thereafter respondent filed an action in superior court seeking a temporary restraining order and a preliminary and permanent injunction restraining appellants from giving effect to the new use of force policy until they met and conferred with respondent. Respondent also sought a judgment declaring that the use of force policy was a "meet and confer" item under the MMBA and the memorandum of understanding and that San Jose's unilateral action violated both the MMBA and the memorandum of understanding.

On March 7, 1975, the trial court issued a temporary restraining order granting the injunctive relief prayed for. On April 2, 1975 appellants answered the complaint and the chief of police withdrew the new use of force policy and reinstated the former policy. Following a trial to the court, the trial court rendered judgment for respondent and issued a permanent injunction which enjoined appellant from altering the 1972 use of force policy without meeting and conferring with respondent and from changing the 1972 use of force policy prior to June 30, 1975, without permission from respondent. The trial court further declared that the use of force policy regarding firearms was a mandatory subject of the meet and confer process under the MMBA. Finally the trial court denied respondent attorney's fees.

The principal issue presented by this appeal is whether appellants were required, under the MMBA, to notify respondent of the proposed change in the use of force policy and to meet and confer with respondent before changing that policy. Counsel have cited no controlling authority, and our own research has disclosed none. The issue appears to be one of first impression.

The MMBA applies to all local government employees in California. It provides for negotiation ("meet and confer") and mediation but not for fact finding or arbitration. (Sections 3505 and 3505.2.) "Meet and confer in good faith" is defined in section 3505 as exchanging information, opinions and proposals, and endeavoring "to reach an agreement on matters within the scope of representation . . . ." (Emphasis supplied.) Section 3504 defines the scope of representation as follows:

"The scope of representation shall include all matters relating...